ORAL ARGUMENT OF LEROY S. ZIMMERMAN, ESQ., ON BEHALF OF THE PETITIONERS

Chief Justice Burger: We will hear arguments first this morning in Hewitt against Helms.

Mr. Zimmerman.

Mr. Zimmerman: Mr. Chief Justice and may it please the Court:

This case involves the issue of whether regulations promulgated by Pennsylvania's prison authorities create the expectation of a liberty interest in prisoners, requiring due process before a prisoner can be transferred from general population to administrative segregation pending the completion of an investigation into a riot at the state prison in Huntington, Pennsylvania.

On December 3rd, 1978, a group of inmates attempted to force their way into the control center of the institution.

A riot ensued.

Several guards were injured.

It was necessary to call upon the Pennsylvania State Police, local law enforcement agencies, and additional corrections personnel to quell the disturbance.

The prison authorities immediately initiated an investigation.

They segregated the suspected participants and attempted to restore order to the institution.

The Respondent was one of 18 inmates suspected of direct involvement in the riot and of assaulting corrections officers.

The following day, December 4, 1978, the Respondent was given a copy of a misconduct report charging him with the assault on officers and conspiracy to disrupt prison operations by attempting to take over the institution's control center.

On December 8, 1978, he was given a hearing, at which he appeared, and it was determined that the investigation was incomplete, that he should remain in administrative segregation pending the completion of the investigation, and a further review of his status was scheduled for January 2nd, 1979.

On that day, Respondent was present at a hearing before the program review committee, where it was decided that his status should remain unchanged pending completion of the ongoing investigation by the Pennsylvania State Police.

On January 19, 1979, the Respondent was charged specifically with a second misdemeanor in connection with an assault upon Sergeant Phillips, a corrections officer, on December 3rd, 1978.

Within three days, on January 22nd, 1979, he was given a hearing, at which he was present, and determined to be guilty of the second misconduct charge and thereby confined to disciplinary segregation for a period of six months.

The sources of a liberty interest are our Fourteenth Amendment, which protects life, liberty and property, and in this particular case we focus on liberty.

The cases of Meachum and Montanye support our Pennsylvania position that administrative custody is within the normal range of a lawful conviction and sentence.

The residue of liberty in the inmate after a lawful conviction and a lawful sentence does not include any right to remain in the general population of the prison.

The fact that changes are adverse to an inmate does not give that inmate a right to due process.

A liberty interest can be created by statute or by regulation.

We focus on regulation in this particular case.

To create that liberty interest, there must be a clear and explicit and direct mutual expectation that a liberty interest is to be created, and the state must be bound to do or to refrain from doing something that can be determined by objective standards.

Prison authorities must have the latitude to exercise discretion in carrying out their duties and responsibilities inside these prisons.

Unidentified Justice: General Zimmerman, would you tell us what section of the Pennsylvania Code, or sections, you believe governed the proceedings in this instance against the prisoner?

107 is a general policy statement of when to use administrative custody.

In order that the prisons remain safe, the officials must have the discretion and the latitude to segregate inmates in order to maintain that security and safety.

There are times, and the list is contained in 95.107, where an individual who poses a threat to other inmates must be segregated, or a threat to staff, or to himself, or he poses an escape risk, or he needs protection himself from other inmates.

Now, I think that 107 is the first section that's relevant here in our inquiry.

But then, of course, it's necessary to go to Section 95.104(b)(3), which is page 43 of our brief.

And that too represents a policy statement for when to use administrative custody, for investigations.

And that was the focus in this particular case.

There was an investigation under way.

The court said that prison society is different from society at large--

Unidentified Justice: Mr. Attorney General, while we're speaking of regulations, your brief doesn't cite Hughes Hughes against Rowe, a case that is made a good bit out of by the opposing briefs.

Do you feel that the Illinois regulations at issue in Hughes against Rowe were in any respect very different from the Pennsylvania regulations at issue here?

Mr. Zimmerman: --Your Honor, in Hughes v. Rowe, in reading the case the key unclear point was the effect of administrative segregation in those regulations in that case.

One opinion noted that the administrative segregation appeared to result in a loss of good time, which certainly we would then concede puts it within Wolff.

However, if the record does not reflect any serious security problem or if that administrative segregation... and this is Hughes, in my opinion... administrative segregation was for investigative purposes, we feel that it's in that sense similar to our case.

Unidentified Justice: General Zimmerman, when was the first date the Respondent was given a hearing?

Mr. Zimmerman: Your Honor, the Respondent was given a notice of his charge on December 4, 1978, the next day, and a hearing on December 8, 1978, within six days.

Unidentified Justice: At that hearing did he have an opportunity to speak for himself?

Mr. Zimmerman: Our regulations in Pennsylvania provide that an inmate has the opportunity to be present, to call witnesses on his behalf, and to speak.

He did speak.

Unidentified Justice: Was he advised of the opportunity to call witnesses on his behalf?

Mr. Zimmerman: The record does not... yes, he was.

As a matter of fact, he had a witness present at that hearing and he had the opportunity to speak, sir.

Unidentified Justice: And on January 2nd, did he have the same opportunity?

Mr. Zimmerman: January 2nd is a hearing conducted by the program review committee.

At that hearing he had the same opportunity to speak.

Our regulations provide that he had the opportunity to call a witness, to have a witness present, to have that witness speak on his behalf, and that a determination is made.

Unidentified Justice: Is a transcript made of those hearings?

Mr. Zimmerman: A written summary was made of those hearings.

A verbatim transcript is not made.

Unidentified Justice: Meanwhile, Mr. Attorney General, I gather he was in administrative custody and confined as such, wasn't he?

Mr. Zimmerman: Yes, Your Honor, he was in administrative custody.

Unidentified Justice: For how long?

Mr. Zimmerman: From December 3rd, right after the riot in the prison, until January 22nd, a total of 51 days.

Unidentified Justice: And the January 22nd is what, after the final hearing he had?

Mr. Zimmerman: January 22nd is the day that he had a full-blown Wolff-type hearing, at which he had the opportunity to speak, call witnesses, and be heard.

Unidentified Justice: Now, was he changed after January 22nd from administrative custody to disciplinary custody?

Mr. Zimmerman: At the conclusion, one of the determinations, of course, at that January 22nd hearing was that he was guilty of the second misconduct charge.

At that time it was determined that he should serve six months in disciplinary custody.

Unidentified Justice: Is there any difference between disciplinary and administrative custody in terms of what the prisoner experiences?

Mr. Zimmerman: Well, in Pennsylvania prisons, Your Honor, the physical setup, disciplinary custody is much the same as administrative custody and not at all dissimilar to general population, either.

The basic difference, of course, is the purpose.

Disciplinary is punitive and administrative is that tool which we have provided in Pennsylvania with these regulations.

Unidentified Justice: Well, in either case he's treated the same way, isn't he?

Mr. Zimmerman: Yes, he is.

There is a basic difference, and that goes to what the effect of that custody is.

In disciplinary custody there is no question that it affects his parole and it would affect his pre-release status.

In administrative custody--

Unidentified Justice: How about good time?

Mr. Zimmerman: --Your Honor, we don't have good time in Pennsylvania.

In administrative custody, there is no effect on parole or on pre-release status.

Unidentified Justice: Mr. Attorney General, when you spoke of the January 22nd hearing, did that relate to the offense of assaulting an officer, allegedly, while he was in administrative custody?

Mr. Zimmerman: The January 22nd hearing dealt with the two misconducts, in essence.

However, the first misconduct that he was charged with generally on December 4th was withdrawn without conclusion at the January 22nd hearing, and the finding of that hearing committee was on the second misconduct charge, where he was confined to disciplinary for six months at that hearing.

Unidentified Justice: The second one was assaulting one of the guards, one of the officers?

Mr. Zimmerman: Yes.

In both instances he was accused of physically assaulting guards.

The guards suffered serious injuries, and he was one, as I said, of 18 inmates that were segregated on the night of December 3rd, 1978, as a result of this prison riot.

Unidentified Justice: Could you explain, though, what's the difference between the two charges?

They're both for assaulting.

They were just different guards at the same riot?

Mr. Zimmerman: They were different guards, Your Honor.

Unidentified Justice: At the same date?

Mr. Zimmerman: The first date... the dates are the same, December 3rd, 1978.

In the first misconduct charge, at that time this whole riot was in operation.

A charge was prepared and given to him the next day, and there wasn't the specificity of the particular guard at that time.

This investigation was continuing and was under way.

The second misconduct charge was specific.

They assaulted Sergeant Phillips, a corrections officer.

And that's the one he was ultimately determined to be guilty of and confined on.

Unidentified Justice: Is it reasonable to assume that it really related to the same incident and the second one was just merely more specific in identifying the particular officer?

Mr. Zimmerman: The same incident, different individuals, and more specificity in the second misconduct.

Unidentified Justice: So the first one related to a different correctional officer?

Mr. Zimmerman: There's a reference to a different corrections officer.

Unidentified Justice: I see.

Mr. Zimmerman: Yes, sir.

Unidentified Justice: Have the Pennsylvania courts interpreted the Section 95.104(b)(3) to mean that administrative custody may be maintained so long as there has been no determination on the misconduct charge?

Mr. Zimmerman: 104(b)... to answer that question, Justice O'Connor, there have been... I have been unable to find any Pennsylvania cases interpreting that section.

Prison authorities must have this latitude because the court has said prison society is different from our society at large, and it's essential that our administrators provide the safety and the security of the inmates, the staff and the communities at large, where there is always concern where prisons are located.

The prisons are different in many ways.

They are places where there are large numbers of violent people congregated.

There's a great deal of resentment and hostility in our prisons.

Prisoners far outnumber corrections officials.

And the signs of potential violence are subjective.

Administrators recognize those signs by virtue of the amalgam of their experience, their intuitive powers, and perhaps their sixth sense as well.

For those policy reasons, it is essential that the Court continue to permit prison administrators to possess the latitude to exercise discretion unless, unless the state through its regulations or statutes binds itself to limit that discretion.

Unidentified Justice: Mr. Attorney General, I'm sorry, but I'd like to interrupt you, if I may, once more on these two charges, because the Chief Justice's question concerned me.

The second one, I'm just looking at it, says misconduct date, January 1979.

Mr. Zimmerman: The second charge, Justice Stevens, was filed on January 19.

Unidentified Justice: I understand.

But the charge itself says, misconduct date, 1/19/79.

Mr. Zimmerman: The misconduct date was not the 19th.

Unidentified Justice: That's what it says.

Page 41A of the record, of your appendix, joint appendix.

Whereas the earlier one says, misconduct date, 12/3/78, which was the date of the riot.

So I wonder if... the Chief Justice had suggested that it was while he was in detention, and I guess that seems to be.

Mr. Zimmerman: That must be an error.

The incident occurred on December 3rd.

All of the assaults occurred on that night.

However, he was not charged... I think it's the wording there.

He was not charged until January with the second misconduct, the specific one against Sergeant Phillips.

Unidentified Justice: Well, the earlier one uses the term "misconduct date" to refer to the date of the riot.

Look at 37A.

Is it quite clear that this is the--

Mr. Zimmerman: The misconduct in the joint appendix at 37A, misconduct 90908, he was give that charge on December 4th, and the alleged misconduct--

Unidentified Justice: --See, he was given the charge on the 4th and it refers to the misconduct date as the 3rd.

Mr. Zimmerman: --The 3rd was the date of the incident, the riot, the day before.

Unidentified Justice: And that's what made me think that the later one, when it says misconduct date January 19, probably meant what it said.

The regulations here do not bind Pennsylvania prison officials do no bind Pennsylvania prison officials to do or to refrain from doing what can be determined by objective standards.

Section 95.107(a)(1), which is at page 46 of our brief, that is the general policy statement of when to use administrative segregation and the purposes I mentioned a few moments ago... protection of the prison society by segregating inmates who pose a threat, who may be an escape risk.

All these factors are subjective and require predictive judgments on the part of our prison officials.

Also at issue, of course, is 95.104, which I've argued... is at page 43 of our brief... which I said is a similar policy statement for using administrative custody.

Because these factors are subjective in nature, there is no liberty interest created.

If this Court finds no liberty interest, then it need go no further.

If the Court finds a liberty interest, I urge the Court to reject the Third Circuit Court's conclusion that the full range of procedures prescribed in Wolff must be provided.

Many of the same considerations which we contend militate against a finding of a liberty interest are also relevant to the issue of what process is due.

Specifically, the factors considered are subjective and they are predictive as well.

The government has an overriding concern for the security in the institutions.

The consequences of administrative custody are minimal.

Thus, all of these reasons dictate against requiring the full range of trial-like procedures required by the court below.

In this case, the prisoner got as much as the Constitution requires, if indeed the Constitution requires anything.

Thank you.

Unidentified Justice: Before you sit down, may I just ask, is it your view that since there's no liberty interest at all and since administrative custody is physically the same as disciplinary custody, that without giving any hearing whatsoever an inmate could be put in administrative custody for the entire period of his confinement?

Mr. Zimmerman: Yes, sir.

Chief Justice Burger: Mr. Fishman.

ORAL ARGUMENT OF RICHARD G. FISHMAN, ESQ., ON BEHALF OF RESPONDENT

Mr. Fishman: Mr. Chief Justice and may it please the Court:

This case is Wolff versus McDonnell revisited with a slightly different twist.

Whether the segregated confinement in this case is legally or technically administrative custody, these prison officials considered it disciplinary in its nature from its inception, based on a single triggering event, the disturbance, and not based on the Respondent's general background or record.

And I think some of the facts need to be clarified for purpose of showing my point.

On December 3rd, that same evening, the Respondent, Mr. Helms, was taken from his cell in the general prison population and placed in a disciplinary cell in segregation under investigation for suspected involvement in the disturbance that evening.

He was charged with a misconduct or disciplinary rule violation within 24 hours of his confinement on the 3rd.

It's our position no hearing was taken on that particular date, that his case was merely continued due to insufficient information and pending the results of a state police investigation.

That is what the Court of Appeals remanded for, on that issue.

The Petitioners in this case, in response to paragraph 19 of the complaint, stated that the first hearing on the misconduct, the first adjudication or factfinding, did not take place until January 22nd of 1979, or 51 days later.

Now, it's important to note that on that report of the hearing committee on December 8th it was labeled at the top "misconduct report".

Unidentified Justice: Mr. Fishman, what did the Court of Appeals hold with respect to whether that first hearing on December 8th had or had not taken place?

Mr. Fishman: They remanded it for a determination factually as to whether or not that was a hearing in respect to the procedures that Mr. Helms asked for.

Unidentified Justice: So they didn't... they made some comment in their opinion, didn't they, about the fact that your client had signed some sort of a statement?

Mr. Fishman: Yes, there was some... it had been decided on summary judgment initially in the district court and the court felt that there were some contradictory statements, the answer to the complaint that I just mentioned, the paragraph 19 stating that the first adjudication was on the 22nd of January, and then the statement that Mr. Helms signed on the 8th which indicated the opposite, that he had a hearing on that day.

That's what the remand was, to clarify that discrepancy.

Moving on, the status review of January 2nd, 1979, by the program review committee, which you've heard mentioned, said "continue Helms in disciplinary custody", even though he hadn't been convicted of anything as of that date.

And even the Petitioners at page 14--

Unidentified Justice: You say convicted?

Convicted.

Mr. Fishman: --Of a misconduct or a disciplinary rule violation.

He hadn't been found guilty or responsible.

Unidentified Justice: Are you suggesting that the action must be supported by a conviction?

Mr. Fishman: No, but I'm trying to show--

Unidentified Justice: Do you mean a finding?

Mr. Fishman: --A finding.

At this point there had been no finding one way or the other, but it said "continue in disciplinary custody".

The point that I'm trying to make is that the prison officials considered this disciplinary from its inception, regardless of whether technically or legally it was administrative custody.

And as I said in the brief at page 14, they stated he was confined in segregation because he was charged with a major misconduct.

In addition, the Court of Appeals found that the conditions of administrative custody were the equivalent of punitive or disciplinary segregation.

And the conditions that Mr. Helms experienced until he had this hearing on the 22nd of January involved sensory deprivation in its true sense.

He was confined in a cell almost 24 hours a day.

The only time he got out was between five and ten minutes a day for exercise, three or four days a week.

If he attempted to as much as talk in a normal tone, he was threatened with an institutional misconduct.

In December and January, showers were virtually nonexistent.

Studies have indicated, as I tried to show in my brief, that this kind of confinement can and often does lead to adverse mental effects upon the inmate.

Unidentified Justice: Well, doesn't any kind of confinement have some psychological reaction?

Mr. Fishman: Yes, but I think in this case it's a question of degree, and I don't think that the confinement involved here that I've described is what naturally inures as part of a Pennsylvania sentence.

And I believe that the potential of this kind of confinement is one of the reasons that Pennsylvania evolved from the 1700's and 1800's in Quaker thought of segregated or solitary confinement to the congregate or general population idea that we have today.

Unidentified Justice: Are the only differences in the administrative custody and the disciplinary custody the effect on parole status and pre-release time?

Mr. Fishman: No.

We believe that the collateral consequences are the same.

Under Pennsylvania law--

Unidentified Justice: You assert that administrative custody does affect the parole release?

Mr. Fishman: --Yes.

Even the Petitioners in their briefs said or conceded that it may result in a delay in a parole hearing or delay of release on parole.

Pennsylvania law and policy, Justice O'Connor, requires that his status be reported to the parole board, the conduct involved.

Unidentified Justice: Do the conditions of administrative confinement differ from the conditions of disciplinary confinement?

Mr. Fishman: I would say yes.

They're worse, because it's indefinite in length.

Unidentified Justice: Well, is that the only difference?

I mean, you've just been telling us that in disciplinary confinement the prisoner may not even speak in a normal tone of voice.

Is that true if he were in administrative confinement?

Mr. Fishman: Well, yes.

Here that's what happened.

Unidentified Justice: And if he's in administrative confinement, he has only ten minutes a day for exercise?

Mr. Fishman: Yes.

Unidentified Justice: And no showers available?

Mr. Fishman: Virtually none, correct.

Unidentified Justice: So there's just no difference in that as to confinement?

Mr. Fishman: Yes.

Unidentified Justice: Whether administrative or disciplinary, it's the same thing, is that it?

Mr. Fishman: Yes.

Unidentified Justice: Well, while they're investigating a serious disruption... well, a riot... would it be proper to have disciplinary... not disciplinary, administrative segregation of people charged?

Mr. Fishman: Yes.

I'd like to--

Unidentified Justice: You have no question about that, do you?

Mr. Fishman: --No.

But in this case I do.

First of all, there's been discussion about the regulation 95.104(b)(3).

I believe Justice O'Connor brought that up earlier.

That regulation provides in all cases the inmate must be released within ten days.

In addition--

Unidentified Justice: Is there a qualifier there, that if no behavior violation has occurred he is to be released?

Mr. Fishman: --No, I believe the "but in all cases" is afterwards, so that it would not be conditioned on a behavior--

Unidentified Justice: So it's your position that

"if no behavior violation has occurred. "

is not a predicate to the release within ten days provision?

Mr. Fishman: --Yes.

Unidentified Justice: There is no Pennsylvania case so holding?

Mr. Fishman: Well, there is a Pennsylvania case, Hoss versus Cuyler, which I cited in my brief, which interprets the same regulation as stating that it creates a liberty interest in the freedom from the, and the words are, "harsh conditions of administrative custody" in Pennsylvania.

And one of the points I'd like to make is, regardless of how one looks at the wording itself of these regulations, these regulations came out of a federal court consent decree called I.C.U. versus Shapp.

The state voluntarily entered a consent decree.

The regulations were issued as a result of it.

So if the standard for creating a liberty interest is the mutual expectation, it's definitely present in this case.

Unidentified Justice: Mr. Fishman, what was the issue in the case that led to the consent degree?

Mr. Fishman: That was a general conditions suit.

There were many issues in that case, from disciplinary confinement to access to law libraries and so forth.

Unidentified Justice: Mr. Fishman--

Mr. Fishman: Yes.

Unidentified Justice: --did the Respondent serve the entire six months to which he was sentenced on January 22nd?

Mr. Fishman: Yes, he was, because the Court of Appeals decision throwing out the misconduct conviction did not take place until much afterwards.

Unidentified Justice: And was his parole deferred as a result of that?

Mr. Fishman: Well, the record is unclear on that.

He did serve more than his minimum release date, but--

Unidentified Justice: But he was paroled?

Mr. Fishman: --Eventually, yes.

Unidentified Justice: In June or May of--

Mr. Fishman: 1980.

Unidentified Justice: --1980.

But the record does not show whether there was any--

Mr. Fishman: Direct connection.

Unidentified Justice: --deferment of parole?

Mr. Fishman: No.

I believe the record is unclear on that, that particular point.

Unidentified Justice: Would you clarify again how administrative custody affects parole or pre-release?

I don't think I understood your statement.

Mr. Fishman: Well, the Pennsylvania statutes, as well as the policies of the Board of Probation and Parole in Pennsylvania, require that the conduct of the individual be reported by prison officials as well as investigated by the parole board.

In addition, program involvement or lack of it, in terms of rehabilitative program, is also reported to the parole board.

Here in this confinement... I don't think I mentioned this... he lost his institutional job.

He was denied any access to the program.

So what I'm saying is, that starts with a negative--

Unidentified Justice: It has an indirect effect.

Mr. Fishman: --Yes, yes, an indirect effect.

Now, the Court of Appeals also found in this case that the institution returned to normal within a day of the disturbance of December 3rd.

And I've already mentioned about the 104(b)(3), that regulation holding someone in investigative status.

There was another regulation, Administrative Directive 004, which required the results of the state police investigation to be communicated to the superintendent of the institution prior to the criminal charges being filed.

Here they were filed on December 11th and, as we heard earlier, they were dismissed.

Yet still Helms did not have his hearing until the 22nd of January.

In addition, Lieutenant Kyler, who was the charging officer and who had submitted two affidavits in this case, the second one appearing at page 82 of the joint appendix, indicated that he was informed to go ahead regardless of the status of the criminal case, to go ahead with the institutional disciplinary charges.

So my point being that the delay here I do not think was justified.

Also, in terms of the question of burden, the second set of admissions in this case indicates that between December 3rd of 1978 and January 21st of '79 215 Wolff-type hearings were conducted in the institution, 19 of which went to individuals allegedly involved in the disturbance.

There's been no factual evidence presented or even suggested that that in any way impeded the operation of the institution or prevented them from returning to normal.

In addition, there was no evidence presented or suggested that the process that Mr. Helms claimed was due and which prison officials claimed that they provided on December 8th would in any way impede the operation of the facility.

Now, there has been a lot of discussion in the briefs concerning prison officials in a riot or on the even of an emergency should not be saddled with disciplinary procedures or procedural due process.

What I think has become lost in that argument is that we're not asking for procedures in that context.

I think the law is clear from this Court and through the Third Circuit as well that in an emergency those procedures can be done away with.

It's afterwards that we're asking for procedures.

Now, in terms of liberty interest, here we're talking about the basic freedom to move about.

We're not talking about an individual who's seeking some minimum security status, parole or some kind of privilege.

Mr. Helms sought what he had prior to December 3rd, 1978, the freedom to move about in the general prison population where he was located on that date.

And as I said earlier, I do not believe the restrictions involved in here can in any way be considered what naturally inures in a Pennsylvania sentence.

I'd like to talk about the decision making process--

Unidentified Justice: May I ask, he's now on parole?

Mr. Fishman: --Yes, Your Honor.

Unidentified Justice: What do you contemplate would happen in the further proceedings which the Court of Appeals has directed?

Mr. Fishman: There's a damage issue pending in the case.

Unidentified Justice: Oh.

1983?

Mr. Fishman: Yes.

Unidentified Justice: Any damage suits brought by the injured guards against him?

Mr. Fishman: No.

He was... the criminal charges were dismissed.

Unidentified Justice: I'm speaking of civil actions.

Mr. Fishman: No, no civil actions.

And I would believe also the evidence in this case indicates no legally sufficient evidence that he was even involved in the disturbance, and that would be our position.

In terms of the decision making, there's almost always going to be a triggering event or series of triggering events, as you had in this case.

And I believe that the decision making is objective.

In my brief I attempted to explain how the Bureau of Prisons, in dealing with incoming inmates in making custody or security decisions, looks at--

As I remember the Court of Appeals opinion, there was some discussion of the fact that the evidence adduced against him was this anonymous witness, I mean, the officer reported an anonymous report, and that's all there was, and that that was not sufficient as a constitutional matter.

Didn't the Third Circuit so hold?

Mr. Fishman: --Yes.

Unidentified Justice: And so isn't it true that your damage proceeding is going to go forward on that issue no matter what we do with this other issue?

I just wonder, how much bearing does this issue we're discussing today have on the hearing that you contemplate, which I gather will take place no matter what we do?

Mr. Fishman: Well, there would be two... there would be a possibility that... there was a remand on the issue of good faith.

If the lower court would find that good faith... that the legal issue on informants was not clearly established at this time, then we would receive no money damages assuming we established liability.

That would then take us to the administrative custody situation, and the lower court would have to make a decision, assuming there was no hearing on the 8th, it's remanded and there was no hearing, there would then have to be a good faith determination as to whether or not the issue of right to procedural due process in the administrative custody context was established.

So that we could theoretically get damages for the period of time he was in administrative segregation--

Unidentified Justice: I see.

Mr. Fishman: --even if we didn't prevail for the whole six months of the disciplinary.

Unidentified Justice: That would be the 51 days, would it?

Mr. Fishman: Correct, 51 days.

Now, in terms of objective decision making, I've mentioned how the Bureau of Prisons looks at the factors, assigns points to them, and then tries to turn the professional impressions into objective decision making.

In the disciplinary context, you take the facts, you apply them to the elements of the charge, and you come out with a determination of guilt or innocence.

In the administrative context, you also apply the facts to the elements.

They may be different, but you come out with a decision of a security risk or a safety concern.

That is in the situation where you don't have a triggering event as here, and I believe the thought processes are the same.

Even if you take the position, well, whatever facts are involved still have to be filtered through the subjective analysis of the decision maker, the nuances or subtleties that might be involved here are certainly no greater than what was involved in the psychiatric diagnosis in Vitek versus Jones.

And there this Court found procedural due process was required, even though the decision makers were some of society's most highly trained professionals.

And some of the cases that I have cited in my brief indicated that where there has been rampant violence in an institution or situations of individual rapes that the custody decisions are being made on the basis of gut feelings or insufficient data, and that's what I think the Petitioners are asking for here.

Procedural due process will guard or help guard against the possibility of disciplinary custody being labeled administrative, but without the procedural protections... exactly what happened in this case.

We've asked for, in addition to a Wolff-type hearing, we've asked for written notice and a written statement of the evidence relied upon and reasons for the action taken.

That has import for the inmate in terms of helping him prepare or present a case, but also for correctional administrators.

It makes for a record to help base subsequent decisions on.

In addition, if the prison official was not present at the initial decision it becomes crucial to understand what has happened in the case.

Now, in my brief I also ask for the discretionary ability, the discretion being with the chairman of the hearing, to allow questioning by the inmate and compelling the attendance of witnesses.

Pennsylvania allows for that presently in its disciplinary system, and I cited in my brief a survey that shows that most jurisdictions or the majority of jurisdictions have some type of framework set up in the administrative custody--

Unidentified Justice: Well, in this case he did have a witness.

Mr. Fishman: --He did what?

Unidentified Justice: He did have a witness, the Respondent.

Am I right?

Mr. Fishman: No, I do not believe he did in this particular case.

Unidentified Justice: Well, the General said he did.

Who's right?

Mr. Fishman: I think what he was referring to, I think, was the correctional officer who testified against him.

But I'm not aware that there was a witness presented in his case.

I believe that the burden involved, since most of the jurisdictions have some type of framework set up, is minimal.

I also, in looking at the federal system in the Bureau of Prisons, in what is known as control unit cases, where an individual is considered a threat or is unable to function in a less secure environment, an escape risk or he presents some type of danger, that individual presently gets what is in essence a Wolff type hearing.

In weighing the factors and in helping to reduce the risk of error and guard against abuse, I think these procedures are absolutely necessary, and we would request that the decision of the Court of Appeals be affirmed.

Unidentified Justice: Mr. Fishman, was there a written summary of the hearing on December, what was it, 8th, December 8th?

Mr. Fishman: Yes.

It stated--

Unidentified Justice: Is that in the record?

Mr. Fishman: --Yes.

It's page 39 and 40 of the joint appendix.

Unidentified Justice: Of the printed appendix?

Mr. Fishman: Yes.

Unidentified Justice: Okay.

Thank you very much.

And is that same true of the January hearing?

Mr. Fishman: Yes.

That's in the record also.

Unidentified Justice: Right.

I'll find it.

May I ask you this question.

Is it critical to your case that the physical conditions of confinement for a person in administrative custody be both as severe as those for a disciplinary confinement and also significantly different from one in the general population?

The reason I ask that is, as I understand the Government's brief, they say in the federal system to which you just referred the administrative confinement is very much like the general population.

Would you say you'd have the same claim in those conditions?

Mr. Fishman: Well, I think one thing.

My facts are a little bit different, because I say that it's disciplinary custody also because of the conditions.

I think the conditions are worse than in the federal situation.

But also because of what the prison officials thought it was.

I think they thought it was disciplinary in nature from the beginning.

That was the beginning of my argument.

Unidentified Justice: I understand that.

But as I understand it, you also argue that, even if they changed all the labels and made everything administrative and gave you no hearings at all... and your opponent, of course, says they could do that.

But your objection is largely, as I understand it... would also be based on the fact that there's a significant physical difference in the character of the custody.

Mr. Fishman: Yes.

I would say that the custody here is so severe that it cannot in any way be considered part of the normal Pennsylvania sentence that one expects.

Unidentified Justice: But you do not contend, if I understand your argument correctly, that it amounted to a violation of the Eighth Amendment?

Mr. Fishman: I don't think this Court has to reach that issue.

But when you look at the question of sanitation and virtually no showers for two months and virtually no exercise and not being able to speak in a normal tone, you might decide that way.

But I don't think that has to be decided in my case.

Unidentified Justice: Mr. Fishman, I'm not entirely clear as to the full scope of your claim.

I do understand that you are arguing that there was a denial of due process to have held your client from December 3rd until January 22nd without a full due process hearing, a Wolff-type hearing.

Mr. Fishman: Yes.

Unidentified Justice: There was a hearing on the 22nd that resulted in the six months of confinement.

You're not objecting to that hearing, are you, in terms of its adequacy?

Mr. Fishman: --Well, it did, because we challenged the basis of the conviction on the informant's testimony, and the Court of Appeals... that issue isn't before this Court, but the Court of Appeals agreed with my position that the January 22nd hearing was defective.

Unidentified Justice: But is the adequacy of the due process at the January 22nd hearing before this Court in this case?

Mr. Fishman: No.

Unidentified Justice: All right.

But that's because the state hasn't challenged the holding that it was insufficient.

My opponent referred to the Hoss case and to the I.C.U. consent decree.

The Hoss case is a district court in 1978 that dealt with a single prisoner in confinement for five years.

And we feel that that decision relating to one prisoner has no precedential impact or binding effect, and we urge this Court to reject that reasoning in the Hoss case.

And in connection with the reference to the I.C.U. consent decree, the consent decree was in the nature of a class action, styled as a class action and a general challenge to prison conditions, and it was settled by the Commonwealth of Pennsylvania in a consent decree.

Now, it's our position that the genesis of the regulation is not relevant.

It's the clear and precise language of the regulation in Pennsylvania examined that does not create the mutual expectation that is necessary for a liberty interest.

The regulation in place, in question here, was in effect before the decision in that consent decree.

One point I would like to address myself to.

I said our regulations in Pennsylvania require... provide for a person to have a hearing and to call a witness.

And in answer to a question, Justice Marshall, I answered your question that our regulations provide for that and that I made, as Attorney General I made, an inquiry into our staff to determine whether in fact a witness was present.

That is not in the record.

I believe I answered the question that way.

I want to make sure I did at this time.

Unidentified Justice: No, you said he was there.

Mr. Zimmerman: That he was there.

Unidentified Justice: I misunderstood you.

You're now talking hearsay, am I right?

Mr. Zimmerman: I made an inquiry, Justice Marshall, to determine that a witness was there at that hearing, sir.

I wanted to clarify my position.

Unidentified Justice: But do we know whether it was a corrections officer?

Your opponent said there was a corrections officer testified.

Mr. Zimmerman: There was also a witness on behalf of the inmate at that hearing.

That was the question I believe that was asked.

That is not in the record.

Unidentified Justice: Well then, am I correct, there is no record of what transpired at that hearing?

It does not mention that there was a witness there on behalf of the inmate.

Unidentified Justice: Or on behalf of anybody else.

Oh, yes it does.

Mr. Zimmerman: At page 39A of the joint appendix and 40A, the reference to the action on that date, the misconduct and the hearing committee's action, you'll see the block there, the inmate entered a plea of not guilty to the December 8th--

Unidentified Justice: This is what you call a report of a hearing?

Mr. Zimmerman: --These are findings of the hearing.

Unidentified Justice: Oh, these are findings.

Mr. Zimmerman: Yes, sir.

Unidentified Justice: Where would we find out what transpired at the hearing, who testified as to what?

Mr. Zimmerman: The report... there is a... however you characterize it, this is the evidence of what transpired at the December 8th hearing.

Unidentified Justice: Well, where do I find who said what about what?

Mr. Zimmerman: There were no... at none of these hearings are there verbatim transcripts made.

They are summary findings that are provided for by our regulations.

Unidentified Justice: My final question: This is all?

Mr. Zimmerman: Yes, sir.

Unidentified Justice: There's nothing else?

Mr. Zimmerman: No, sir.

Unidentified Justice: May I clarify?

Which hearing was it that the inmate had the witness testify at?

Mr. Zimmerman: December 8th.

Unidentified Justice: The December 8th.

Because the January 22nd hearing, as I understand it, the Court of Appeals found that one insufficient.

And I'm correct in recalling, you don't challenge that determination?

Mr. Zimmerman: We concede the point that a liberty interest was created there in disciplinary custody.

The January 22nd hearing at page 44A of our appendix is the same kind of report that appeared in connection with the December 8th hearing, a summary.